Summary: Mrs C complained the Council wrongly refused to provide free school transport for her son to her preferred school which was listed in his Education, Health and Care plan. We found no fault by the Council. It reached decisions about the school placement and free school transport in line with statutory guidance and its policy.

The complaint

1. The complainant, Mrs C, complains about the Council’s decision to refuse her son (X) free school transport. She says its decision was wrong as the nearest and most suitable school to X is her preferred school which is listed in his Education, Health and Care plan.
2. Mrs C said, as a result, she has had cost to pay for X’s transport to school.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs (SEN). We refer to it as the SEND Tribunal in this decision statement.
6. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

7. I considered evidence provided by Mrs C and the Council as well as relevant law, policy and guidance.
8. Mrs C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law

9. Local authorities must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’ of compulsory school age to attend their ‘qualifying school’. The travel arrangements must be made and provided free of charge. The relevant qualifying school is the nearest school with places available that provides education appropriate to the age, ability and aptitude of the child, and any special educational needs the child may have. ‘Eligible children’ include:
• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children aged eight and above);
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem;
• children living within walking distance of the school but who cannot walk to school because the route is unsafe; and
• children entitled on low-income grounds. (Education Act 1996, 508B(1) and Schedule 35B)
10. If only one school is named in a young person’s EHC plan, then that is the school the council has determined is the nearest suitable school for the child. It is therefore the nearest ‘qualifying school’ for the child to attend for school transport consideration. This is because the council has not made arrangements for the child to attend a closer school. (S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346) Where the child is attending the ‘nearest suitable school’, they will qualify for free transport, provided any other relevant conditions are met.
11. It is open to a local authority to name two schools in section I of the EHC Plan and to state that the parental school has been named only on condition of the parent paying the transport costs. (R v Essex CC ex p C [1994] ELR 54, R(M) v Sutton LBC [2207] EWCA Civ 1205, S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346)
12. This approach is echoed in the statutory Government guidance (the guidance): 'Travel to school for children of compulsory school age'. In summary, this says the following:
• Parents have the right to ask for a school to be named in the EHC Plan and that school must be named unless the council considers it is unsuitable for the child's age, ability, aptitude or special educational needs.
• The council must also consider whether the preferred school is compatible with the efficient education of others or the efficient use of resources. As part of this consideration, the council must consider whether the cost of transport is compatible with the efficient use of resources.
• Where the child is eligible for free transport, the council should consider the cost of travel. The travel arrangements may be relevant to the decision about naming the school. For example, the impact of the journey on the child and their education.
• If the council considers the parent's preferred school would be unsuitable for any of the above reasons, the council must name a different school.
• If the council decides the parent's preferred school is incompatible with the efficient use of resources it may:
1. name a different school that would be appropriate; or
2. name the parent's preferred school on the condition the parent arranges the travel or provides some or all of the cost; or name both schools; this is on the condition the parent arranges all or some of the cost to their preferred school or the council provides transport to a different school which is also appropriate for the child's needs.

Council’s Home to School Transport policy

13. The Council’s policy says if a child is attending a school on “parental preference” grounds i.e. the school applied for is not the catchment/nearest school (or one of the three nearest eligible schools in the case of extended rights), there is no duty for a Local Authority (LA) to provide transport and the families are responsible for their own arrangements.
14. If a child or young person with an Education Health & Care Plan attends a mainstream school other than their catchment or nearest due to parental preference having that school named on their EHCP, the family will not be eligible for free transport.

Transport appeals

15. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.
16. The statutory guidance recommends councils adopt the following appeals process:
• Stage 1: review by a senior officer. Within 20 working days of receiving a parent’s writ-ten request to appeal the decision, a senior officer reviews the original decision and sends the parent a detailed written notification of the outcome of the review setting out the nature of the decision, how the review was conducted, what was taken into account, the rationale for the decision reached, and how to escalate their case to stage 2; and
• Stage 2: Within 40 working days of receipt of the parent’s request for an independent appeal panel to consider written and verbal representations, a detailed decision is sent setting out: the nature of the decision reached; how the review was conducted; what factors were considered; the rationale for the decision reached; and information about appealing to us.

(Department of Education, Travel to school for children of compulsory school age statutory guidance 2023, Part 5)

What happened

17. In the 2023/2024 academic year Mrs C’s son (X) attended a mainstream school (School 1), which was the nearest school to his home. He had some special educational need support available to him in school.
18. In 2023 Mrs C made a request for the Council to complete an Education, Health and Care (EHC) needs assessment for X. This was due to his diagnosis of health conditions which impacts his ability to receive an education and the challenges he had experienced in School 1.
19. The Council initially refused her EHC needs assessment request. However, it later agreed an assessment was appropriate.
20. In late 2023 Mrs C applied for schools as part of X’s transition into secondary school. She set out her preferred school (School 2) which was a considerable distance away from the family home.
21. The Council’s admissions team considered Mrs C’s school applications for X. As School 2 agreed to educate X, he was put on roll for the 2024/2025 academic year.
22. In May 2024 the Council confirmed it would issue an EHC plan for X. It shared its draft plan and informed Mrs C it intended to list School 1 in his final EHC plan. However, it was aware he was moving to School 2 in September 2024. It agreed to list School 2, but said X would not be entitled to free school transport as this was parental preference and not the nearest suitable school.
23. Two weeks later the Council issued X’s final EHC plan. This lists both School 1 and School 2 (from September 2024). It also says School 2 is not X’s nearest suitable school to meet his special educational needs and is parental preference. In order to meet parental preference, the Council agrees to School 2 on the condition Mrs C arranges and funds transport.
24. In Summer 2024 Mrs C sought a review of the Council’s decision to refuse free school transport for X to School 2 from September 2024. She said:
• although the school was parental preference, it was the nearest and most suitable school to meet X’s needs. She explained both School 1 and School 2 were mainstream, but the offer and support was different between the schools;
• School 1 was in agreement it could not meet X’s needs. She provided a statement from the school which set out X’s challenges in school and its view he would benefit from a setting with a specialised and vocational approach and;
• X had trailed travelling on the school bus, but this did not work for him.
25. In response the Council did not change its view. It found it had properly considered X’s case and reached its decision he was not entitled to free school transport as he was not attending the nearest suitable school, which had also been set out in his EHC plan.
26. Mrs C appealed the Council’s decision to its school transport appeals panel. The Council acknowledged this, explained the process, and scheduled the hearing.
27. The appeals panel considered Mrs C’s appeal in September 2024. The Council and Mrs C made representations. The panel decided X was not entitled to free school transport as he was not attending the nearest suitable school to meet his needs. It also considered costs and its discretionary powers.
28. Mrs C asked the Ombudsman to consider her complaint.

Analysis and findings

29. The Ombudsman is not an appeal body. This means it is not our role to take a second look at a decision not to provide school transport to decide if it was right or wrong. We are also not here to substitute the Council’s opinion for our own when it comes to matters such as whether a school is suitable or not, and such issues carries appeal rights to the SEND Tribunal.
30. Instead, we look at the processes a council followed to make its decisions. If we consider it followed those processes correctly, and they were in line with the relevant law and guidance, we cannot question whether the decision was right or wrong, regardless of whether a complainant disagrees with it.

X’s school placement

31. Mrs C applied for X to be placed at School 2 before he had an EHC plan. Her choice for this school was therefore parental preference. There was no dispute over whether this school placement was suitable for X.
32. During the EHC plan process the Council was required to consider X’s school placement. This included whether there was a nearer suitable school which could meet his needs. The Council found both School 1 and School 2 would be suitable as they were both mainstream and available to X. Consultations were sent to both schools, but it did not receive a response from School 1.
33. I found the Council was allowed to reach its view on the suitability of the schools. It decided School 1 was suitable for X and should be listed in his EHC plan. In line with the statutory guidance and case law the Council listed both School 1 and School 2 in the EHC plan.
34. While Mrs C may disagree about the suitability of School 1, any disagreement about the suitability of schools listed in an EHC plan carries appeal rights and is for the SEND Tribunal to consider.

X’s entitlement to free school transport

35. Once the Council decided School 1 was suitable for X to attend and it agreed the parental preference School 2 was also suitable for X, it should decide whether:
• there was a place available for X at each school; and
• consider whether Mrs C’s choice of school was incompatible with the efficient use of resources.
36. In this case, as X had already been attending School 1, it is established there was a school placement available for him. However, the Council has not been able to provide written evidence it assessed the transport costs prior to deciding on school placements in his EHC plan. Its failure to have appropriate records to evidence this consideration would normally be fault.
37. However, the Council’s refusal was based on the fact there was no transport costs for X to attend School 1 due to the schools limited distance to his home. It was therefore aware a school 16 miles away would incur significant transport costs. The evidence also shows it obtained costs in Autumn 2024 for school transport for X to School 2 which the appeal panel considered.
38. I am therefore satisfied the Council has considered and reached its view X would not be entitled to free school transport to School 2 as this was parental preference and not an efficient use of resources. This was a decision it was entitled to make, and it correctly listed both schools in X’s EHC plan which clearly set out Mrs C would be responsible for transport costs to School 2.

The transport appeals process

39. I have found no fault in the process the Council followed throughout the appeals process as this was in line with the statutory guidance and the Council’s policy. In reaching my view, I was conscious the evidence shows it:
• considered Mrs C’s review request and set out its reasons why X would not be entitled to free school transport. Although, the review took longer than recommended in the statutory guidance, this is only a guide and I am not satisfied the Council caused unnecessary delay; and
• invited Mrs C to appeal, arranged the appeal, informed her about the process, held the appeal, considered her and the Council’s representations, and retained notes of its decision making. The Panel also considered its discretionary powers.
40. As I have not found fault in the process the Council followed and it reached a decision it was entitled to make, I cannot criticise the merits of its decision.

Back to top

Decision

41. I find no fault by the Council in how it handled and decided Mrs C’s free school transport request and appeal for X.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman